Comes now the defendant, xxxxxxx, by and through his attorney, Virginia L. Grady, and
respectfully moves this Court to suppress evidence seized from Mr. xxxx vehicle following
a traffic stop conducted in violation of the Fourth Amendment.

FACTS

On September 16,1998, at approximately 4:40 p.m., Colorado State Patrol Trooper Michael
Evans was stationed on the median of Colorado Highway 76 monitoring westbound traffic.
Noticing that an eastbound Ford convertible appeared to be missing its rear license plate,
Trooper Evans initiated a traffic stop and the convertible pulled to the side of the road
without incident.'

I At the preliminary hearing, Trooper Evans testified that Colorado law requires
motorists to display a rear license plate somewhere on the back of a vehicle. He had Li no
idea" whether the same was required of drivers in Arizona, the state in
whichmr.xxxxxxx vehicle was registered and entered.

The driver of the convertible was the defendant, Michael xxxxx. Trooper Evans told Mr.
xxxxx that he had been stopped for failure to display a rear license plate. In response,
Mr. xxxxx pointed out the temporary Arizona license tag located in the upper right portion
of the windshield. He also produced, pursuant to the Trooper's request, his Arizona
driver's license and a car rental agreement. Trooper Evans began to question Mr. xxxxx and
his passenger, Angeline Yarbrough. He asked Mr. xxxxx where he and Ms. Yarbrough were
headed, and why. Mr. xxxxx answered that they were traveling from Phoenix, Arizona to
Omaha, Nebraska where Ms. Yarbrough planned to relocate for a new job. Trooper Evans asked
Ms. Yarbrough her age. She stated that she was eighteen. Trooper Evans noted that she was
significantly younger than Mr. xxxxx, who is in his mid-thirties.

Trooper Evans returned to his patrol car, ran a computer check on Mr. xxxxx's
documents, and determined that his license and rental agreement were valid and that
"everything seemed to be in order at that point. 112 (Transcript
from Preliminary/Detention Hearing, Sept. 22, 1998, attached hereto and identified as
Defendant's Exhibit A, hereinafter "Tr.," at 12). Nonetheless, he radioed for
assistance and, without returning Mr. xxxxx's documents, asked each of the car's occupants
to get out of the car separately for further questioning. In his report, Trooper Evans
explained that he prolonged the stop because he "still sensed an uncomfortableness
[sic] from Yarbrough and wanted to make sure that no criminal activity was taking place .
. . ." (Report by M.K. Evans, undated,

2 Trooper Evans' direct testimony at the
preliminary hearing differs from his police report: At the hearing, he testified that he
checked Mr. xxxxx's documents almost immediately; thus, by the time he first inquired
about the defendants' travel plans, he had already confirmed the validity of the license
and rental agreement.

2

attached hereto and identified as Defendant's Exhibit B, hereinafter
"Report," at 1). At the preliminary hearing, Trooper Evans later recalled that
he had a specific concern that Ms. Yarbrough might be traveling with Mr. xxxxx against her
will, since she appeared to be "young [and] slightly nervous." (Tr. at 35).

After directing Mr. xxxxx and Ms. Yarbrough to get out of the car, Trooper Evans took
Ms. Yarbrough aside and began questioning her. Again, he asked about the origin,
destination and purpose of her trip. He asked for details about the nature of her
relationship with Mr. xxxxx. He asked whether all of the luggage belonged to her and Mr.
xxxxx or whether they were transporting something for someone else. He asked if there was
"anything illegal" in the vehicle. (Tr. at 13-14). In spite of a concern that
Ms. Yarbrough might be traveling with Mr. xxxxx against her will, Trooper Evans never
asked this question. His concerns apparently alleviated, Trooper Evans then instructed Ms.
Yarbrough to return to the car.

Next, the trooper ordered Mr. xxxxx to the rear of the vehicle and repeated the same
series of questions, to which Mr. xxxxx gave the same answers.' Mr. xxxxx also mentioned,
in response to additional questioning, that he was currently unemployed. Toward the end of
the conversation, Mr. xxxxx appeared "visibly nervous" -- according to the
trooper, he looked toward the ground and seemed fidgety. (Report at 2).

1 Trooper Evans believed that one question produced a discrepancy: when

asked how long the two travelers had known each other, Mr. xxxxx said
five months and

Ms. Yarbrough said either about three months (Tr. at 14) or a few months
(Report at 1).

3

Trooper Evans then returned Mr. xxxxx's documents and requested consent to search the
car. Mr. xxxxx initially agreed, but, after the trooper had thoroughly searched two pieces
of luggage, he expressed his concern that the procedure seemed unfair. (Tr. at 19). He
asked Trooper Evans "what would've happened if I had said 'No?... (Report at 2). The
trooper replied that he would have "told him to'[h]ave a nice day'and left." (Id.). Mr. xxxxx then revoked his consent.
Trooper Evans, however, did not tell Mr. xxxxx to have a nice day and did not permit the
travelers to continue on their way. Instead, in what he conceded was a
"long-winded" manner (Tr. at 45), Trooper Evans began to talk about why he had
requested permission to search Mr. xxxxx's car. The trooper summarized that explanation in
his report:

I said "Okay that's your right to do so, however I'd like for you to understand
why I'm doing this. The last thing that I want is for you to feel harassed, I don't want
anyone I deal with to feel that way." I continued by saying "Try to understand,
this particular section of Colorado 76 has a reputation as being traveled by drug
smugglers, and other criminal activists, and sometimes we ask people for permission to
search their vehicles to ensure that that kind of activity isn't taking place. Some say
yes and some say no." I also told xxxxx that "I felt that I would be negligent
in my duties if I were not on the look out for such activity, and that it was not my
favorite part of my job, but, that I felt it was an important part of it."

(Report at 2).

While Trooper Evans was giving this explanation, Trooper Mark Dalstein arrived at the
scene. Trooper Evans asked Mr. xxxxx to "wait right here" (Report at 2), and
apprised the second trooper of the situation, including Mr. xxxxx's opposition to the
search. Trooper Dalstein took Mr. xxxxx aside and began talking to him while Trooper Evans
called for a canine unit. While waiting for the canine unit to arrive, the two troopers
again separately questioned the two travelers. Ms. Yarbrough was asked about possible drug
use by Mr. xxxxx. Mr. xxxxx was again questioned about who owned each piece of luggage.

The drug detection dog finally arrived' and alerted to the trunk of the car. In the
subsequent search of the vehicle, the troopers discovered approximately twenty four pounds
of marijuana and several pounds of methamphetamine.' Mr. xxxxx and Ms. Yarbrough were
arrested and the case was turned over to federal investigators.

STATEMENT OF THE ISSUE

Mr. xxxxx was detained by Colorado State troopers for suspicion of minor traffic
violations. The prolonged detention that ensued was unsupported by reasonable, articulable
suspicion that either Mr. xxxxx or his passenger were engaged in criminal activity. The
appropriate inquiry here is whether the detention impermissibly exceeded the scope of a
routine traffic stop, not whether the canine search that eventually followed the detention
was legal.

DISCUSSION

A routine traffic stop is a seizure that implicates the Fourth Amendment. For purposes
of constitutional analysis, it is characterized as an investigative detention, Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Hunnicuft, 135 F.3d 1345, 1348
(10th Cir. 1998), and its reasonableness evaluated under the principles announced in Ter!y v. Ohio, 392 U.S. 1 (1 968). An
investigative stop is reasonable, and thus comports with constitutional requirements, if
it was

I Discovery available to defense counsel at this point does not provide the time of the
canine unit's arrival at the scene. Suffice it to say, Mr. xxxxx's detention extended well
beyond the period of time generally associated with a routine traffic stop.

I At the scene, the troopers concluded the powdery substance was methamphetamine. Lab
results, however, have not yet been disclosed.

5

justified at its inception and if the officer's action was ... reasonably related in
scope to the circumstances which justified the interference in the first place."' United States v. Shareef, 100 F.3d 1491, 1501
(10th Cir. 1996) (quoting Terry , 392 U.S.
at 20). For purposes of this motion, Mr. xxxxx does not challenge the reasonableness of
the initial traffic stop, but only the reasonableness of Trooper Evans' continued
detention even after he had confirmed Mr. xxxxx's entitlement to operate the car.

An investigative detention must be temporary, lasting no longer than necessary to
effectuate the purpose of the stop, and the scope of the detention must be carefully
tailored to its underlying justification. Florida
v. Rover, 460 U.S. 491, 500 (1983); United
States v. Wood, 106 F.3d 942, 945
(10th Cir. 1997). During a routine traffic stop, an officer is permitted to ask questions,
examine documentation, and run computer verifications for the limited purpose of
determining whether the driver has a valid license and is entitled to operate the vehicle.
United States v. Miller, 84 F.3d 1244,
1250 (10th Cir. 1996). The officer may detain the driver as long as reasonably necessary
to make those determinations and to issue a citation or warning. Wood, 106 F.3d at 945. However, the Tenth
Circuit has repeatedly held that "[w]hen the driver has produced a valid license and
proof that he is entitled to operate the car, he must be allowed to proceed on his way,
without being subject to further delay by police for additional questioning." United Statesv. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996); United States v. Gonzalez-Lerma, 14 F.3d 1479,
1483 (10th Cir. 1994).

Here, Trooper Evans stopped Mr. xxxxx's car because he believed it had no rear license
plate. After discovering that a temporary license plate was indeed displayed in the
windshield, Trooper Evans verified Mr. xxxxx's license and rental agreement and concluded
that "everything was in order." (Tr. at 12). Having determined that Mr. xxxxx
was entitled to drive the vehicle, Trooper Evans "should have terminated the
encounter and permitted him and [Ms. Yarbrough] to go on their way." Lee, 73 F.3d at 1039. Yet, without returning Mr.
xxxxx's documents, the trooper proceeded to question Mr. xxxxx and Ms. Yarbrough
individually and at some length about topics entirely unrelated to both Mr. xxxxx's
entitlement to operate the car and Ms. Yarbrough's willingness to accompany him on the
trip.

An officer may prolong a detention beyond its original purpose in only two
narrowlydrawn scenarios: (1) where he has an objectively reasonable and articulable
suspicion that the person detained is engaged in criminal activity or (2) where the
encounter becomes consensual. Wood, 106 F.3d at 946; Hunnicuft, 135 F.3d at 1349. Although Mr. xxxxx
initially consented to a search of his vehicle, he unambiguously withdrew his consent a
few minutes later, and thus the second scenario does not apply. See United States v. Carter, 985 F.2d 1095, 1097
(D.C. Cir. 1993) (recognizing constitutional right to revoke consent and holding that
revocation may not contribute to reasonable suspicion). Instead, Trooper Evans relied on
the first scenario, claiming that the continued detention of Mr. xxxxx and Ms. Yarbrough
was supported by a reasonable, particularized suspicion that criminal activity was
occurring.

Existence of objectively reasonable suspicion of illegal activity does not depend on
any one factor, but on the totality of the circumstances. United States v. Salzano, 149 F.3d 1238, 1242
(10th Cir. 1998). Of course, the totality of "individual null factors will almost
always amount to a null set." Id. at
1245. Inchoate suspicions and unparticularized hunches do not provide reasonable
suspicion. United States v. Fernandez, 18
F.3d 874, 878 (10th Cir. 1994). And, "even though reasonable suspicion may be founded
upon factors consistent with innocent travel," Wood, 106 F.3d at 946, "[s]ome
facts must be outrightly dismissed as so innocent or susceptible to varying
interpretations as to be innocuous." Lee, 73 F.3d at 1039. See also Reid v. Georgia, 448 U.S. 438, 441 (1980) (conduct
that "describe[s] a very large category of presumably innocent travelers" is
insufficient to constitute reasonable suspicion). The government bears the burden of
proving the reasonableness of the officer's suspicion. Salzano, 149 F.3d at 1241.

At the preliminary hearing, Trooper Evans testified that the following factors amounted
to an objectively reasonable suspicion to believe that criminal activity was afoot: (1)
Mr. xxxxx, who mentioned he was currently unemployed, was driving "a fairly nice
vehicle"; (2) Ms. Yarbrough was relocating for a job that paid only $6.50 an hour;
(3) Mr. xxxxx had recently been robbed at gunpoint; (4) in response to questioning, Mr.
xxxxx first told the trooper he had not previously been to Omaha, then corrected himself
"a second" later and explained that he had driven to the city before; and (5)
both Ms. Yarbrough and Mr. xxxxx appeared very nervous, fidgeting with their hands and
avoiding eye contact, and Mr. xxxxx's heart was beating rapidly.' (Tr. at 46-49).

__________________

6 With regard to Mr. xxxxx's rapid heartbeat, the
trooper testified as follows:

Q: His heart was beating rapidly?

A: Yes, ma'am.

Q: How do you know that?

A: Something that -- I don't know -- maybe I'm the only one that does this, I don't
know, but a lot of times when I first approach a vehicle, the first thing I look at is the
person's chest area, and a lot of time if they're extremely nervous -- and it's been my
experience that usually people I can kind of see [sic] their shirt move a little bit, if
they're very nervous ....

Q: I see. So what you're saying is that you could see his heart beating rapidly through
his shirt?

A: No, I could see -- no, I couldn't see his heart per se.

Q: I understand that.

A: I could see a vibration of his shirt, indicating to me that he was --

Q: His heart was beating rapidly?

A: Yes, ma'am.

(Tr. at 48-49).

Two factors must be dismissed outright as either so innocent -- or so irrelevant -as to
be innocuous. First, that Mr. xxxxx had recently been the victim of a robbery is entirely
unrelated to the likelihood that he was transporting narcotics on September 16, 1998. That
fact cannot give rise to a suspicion of criminal activity. Second, Mr. xxxxx's error in
recalling his previous trip to

Omaha suggests forgetfulness rather than purposeful deception. See Wood, 106 F.3d at 947 (defendant's error in
identifying city in which he rented car, where promptly corrected, was "not the sort
of inconsistency" that gave rise to reasonable suspicion).

Next, Trooper Evans found it odd that Mr. xxxxx had rented a nice car for the trip,
given his status as unemployed. An individual's decision to use a certain mode of
transportation, or a certain quality of transportation, "cannot support a reasonable
suspicion of criminal activity, even when it would seem to make more sense financially to
choose an alternative form of transportation and even when the defendant states that he is
not currently employed." Salzano, 149 F.3d 1238. The officer in Wood, for example,
based his suspicion of criminal activity on the fact that the defendant, an unemployed
painter in Kansas, had flown to California for a two-week vacation, then rented a car to
drive back to Kansas. The Tenth Circuit rejected the argument that the defendant's travel
plans somehow indicated participation in criminal activity; after all, the court pointed
out, the painter might have saved money for his trip, might have won the lottery or might
have relied on his credit cards. Wood, 106 F.3d at 947. Likewise, Mr. xxxxx's decision to
rent a convertible does not transform his trip with a friend into some kind of sinister
activity. Though Trooper Evans might consider Mr. xxxxx financially irresponsible, Mr.
xxxxx's fiscal frivolity does not justify his prolonged detention.

Similarly, Ms. Yarbrough's decision to relocate for a low-paying job is a factor
susceptible to a variety of benign interpretations. Trooper Evans might have made a
different career choice, but he, of course, has no information about Ms. Yarbrough's
employment history or other variables that might have influenced her decision. A steady
office job paying $6.50 an hour might actually represent an increase in both salary and
prestige for her. And, the idea of living in Nebraska might have held some appeal; in
fact, during one of the trooper's numerous conversations with Ms. Yarbrough, she told him
she wanted to leave Phoenix and the undesirable elements of her old neighborhood. (Report
at 3).

The final factor, and the one that figured most prominently in Trooper Evans' belief
that something seemed awry, was the trooper's subjective assessment of Mr. xxxxx and Ms.
Yarbrough as extremely nervous during the detention. Nervousness alone cannot support
reasonable suspicion of criminal activity. Fernandez,
18 F.3d at 880. This is because, as the Tenth Circuit has frequently noted, "[i]t is
certainly not uncommon for most citizens -- whether innocent or guilty -- to exhibit signs
of nervousness when confronted by a law enforcement officer." Wood, 106 F.3d at 942; Saizano, 149 F.3d at 1244; UnitedStates
v. Lambert, 46 F.3d 1064, 1070-71 (10th Cir. 1995).

As a factor of limited significance, nervousness must be discounted absent signs of
nervousness beyond the norm. Wood, 106 F.3d at 948; Fernandez, 18 F.3d at 879. Though he
acknowledged that many individuals were uncomfortable in the presence of police officers,
Trooper Evans contended that, from the start, Ms. Yarbrough appeared "a little more
nervous than the average person who just doesn't like the police being around." (Tr.
at 30).

The trooper's claim is untenable for two reasons. First, even assuming Ms. Yarbrough's
initial nervousness could support a reasonable suspicion that she was traveling against
herwill, Trooper Evans'broad inquiryto both travelerswas not sufficiently tailored to the
purpose of the continued detention; in other words, to alleviate that concern, Trooper
Evans could have asked Ms. Yarbrough questions to determine whether she had in fact been
abducted, but his inquiry into ownership of the luggage and transportation of the
contraband was unrelated to his specific worry and thus improper. Moreover, Trooper Evans'
suspicions of abduction were clearly allayed following his conversation with Ms.
Yarbrough, since he instructed her to return to the car. At that point, the couple should
certainly have been permitted to go on their way. See
United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975) (officer may ask
individuals to explain suspicious circumstances, but any further detention must be based
on consent or probable cause).

Second, Trooper Evans' assertion that the travelers' fidgety movements, lack of eye
contact, and Mr. xxxxx's rapidly beating heart demonstrated nervousness beyond the norm is
unhelpful in evaluating the existence of reasonable suspicion. The trooper in Saizano made the same claim, contending that the
defendant's hands were "shaking more than the trooper usually sees during traffic
stops." 149 F.3d at 1244. The court concluded, however, that it "must discount
that evidence due to the fact that [the trooper] did not know [the defendant], thus he had
no basis upon which to contrast [the defendant's] behavior during the traffic stop with
his usual demeanor." Id. Trooper
Evans had never met either Mr. xxxxx or Ms. Yarbrough; he therefore had no way to judge
whether Ms. Yarbrough generally makes eye contact with police officers or how fast Mr.
xxxxx's heart generally beats.

The factors cited by Trooper Evans, both singularly and in the aggregate, cannot
support a finding of reasonable suspicion. To permit a seizure in this case, as the court
concluded in Wood, "on such a weak foundation would be tantamount to subjecting the
traveling public to virtually random seizures, inquisitions to obtain information which
could then be used to suggest reasonable suspicion, and arbitrary exercises of police
power." 106 F.3d at 948.

The detention in this case impermissibly exceeded the scope of its initial
justification. Evidence obtained as a result of an illegal detention is
"impermissibly tainted" and must be excluded as the product of a Fourth
Amendment violation. Wong Sun v. United States, 371 U.S. 471, 488 (1963); United States v. Sandoval, 29 F.3d 537, 540 (1
Oth Cir. 1994). Accordingly, all evidence discovered in the search of Mr. xxxxx's vehicle
must be suppressed.